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lunes, 29 de noviembre de 2021



Who will be able to get rid of paying the municipal capital gain after the legal limbo of the Government


Since the rule does not have retroactive effect, it can make many more taxpayers able to avoid paying the tax

Today, November 10, the regulatory modification has come into force so that the municipal capital gain is legal and constitutional. Specifically, Royal Decree-Law 26/2021, of November 8, adapts the tax to successive declarations of unconstitutionality. As the rule does not have retroactive effects, it can mean that many more taxpayers can avoid paying the tax and, on the contrary, that the municipalities lose more collection than originally planned.
The new regulations designed by the Ministry of Finance do not have retroactive effects, as established in the Third Final Provision of the Royal Decree-Law: *This royal decree-law will enter into force on the day following its publication in the Official State Gazette*.

Therefore, and as pointed out by José María Salcedo, partner of the Ático Jurídico law firm, the new regulations and the new way of calculating municipal capital gains cannot be applied to sales of homes or inheritance of homes made before its entry into force. Therefore, the new calculation method will only apply to property transfers made after the regulatory change came into force.

What happens to those transmissions made before the Royal Decree-Law enters into force?

Salcedo considers that it would not be possible to apply the regulations declared unconstitutional, once the Constitutional ruling takes full effect by being published in the BOE.
Articles 107.1, 107.2.a), and 107.4 of the Consolidated Text of the Local Tax Law have been expelled from the legal system, and declared unconstitutional and void. However, the effects of said expulsion must wait for the publication in the BOE of the sentence.
But when this occurs, they will be predictably ex tunc. That is, forever. Therefore, said unconstitutional regulation may not be applied to demand the tax on previous transfers.

What happens with the transfers made that are pending to pay the capital gain

All transfers, whether sales, inheritances or donations of real estate, carried out before the entry into force of the Royal Decree-Law (before November 10) and that have not yet been liquidated, self-liquidated or declared, are orphaned of regulations with the one to calculate and demand the tax to pay. Different situations can occur, as Salcedo recalls:

1. Taxpayers who are waiting for the City Council to notify them of a settlement

There are many taxpayers who declared the sale or inheritance of a home, as required by the municipal ordinance. And they are still waiting for the City Council to notify them of the settlement. This, the Administration failing to comply with the maximum period of six months to settle, provided for in the General Tax Law. Unfortunately, the settlement sent by the council should not apply the new form of calculation, since the new regulations do not have retroactive effects. And this liquidation cannot be based on the calculation method declared unconstitutional in the judgment of last October 26.
Therefore, the lawyer Salcedo advises that for any settlement that is notified from now on, but that refers to operations carried out before the entry into force of the Royal Decree-Law, it should be appealed because he considers that it could be illegal.

2. Taxpayers who are in the deadline to present their self-assessment

Those taxpayers who are pending to self-assess the tax, for a sale or inheritance made before the entry into force of the Royal Decree-Law, will be in the same situation. *It can be a very common case in the case of inheritances, whose self-liquidation period is 6 months, extendable to one year,* says Salcedo.
As was the case with settlements, these taxpayers will not be able to calculate the tax based on the new calculation method or on the old method because it has been declared unconstitutional. So Salcedo advises that they self-liquidate the municipal capital gain to zero. And if the City Council wants to dictate liquidation either by applying the new or old regulations, it recommends that the taxpayer resort to it.

3. Taxpayers who are in the deadline to declare a transfer

Those taxpayers who have sold a home or inherited a home before the Royal Decree-Law enters into force and must declare said transmission before the city council, it is convenient that they carry out such declaration. This, requesting that the issuance of any liquidation not proceed because the new regulation cannot be used, since it does not have retroactive effects, nor the one declared unconstitutional, which will disappear definitively at the moment the sentence is published in the BOE.
In the event that the City Councilor decide to liquidate, Salcedo advises to appeal said liquidation.

4. Taxpayers who did not declare the tax, or did not present the self-assessment

Taxpayers who did not declare the tax at the time may also be exempt from paying it. *The Administration can verify the breach of such obligation, notifying the tax settlement that is appropriate. However, in the case of taxable events upon the entry into force of Royal Decree-Law 26/2021, we find transfers that cannot be settled in accordance with the new regulations. Nor, due to the declaration of unconstitutionality, applying the regulations in force on the date the transmission took place *, adds the partner of Ático Jurídico. Therefore, they will be able to appeal the liquidation that is dictated, to avoid paying the municipal capital gain.

In short, José María Salcedo ruled that this *tax limbo* of the Government could bring more joy to taxpayers than estimated by the Executive itself. Thus, it will not only affect those who transferred a property as of October 26, the date on which the Constitutional ruling was issued, and until the entry into force of the Royal Decree-Law, but also all the transmissions that, to the date of entry into force of this last rule, have not been liquidated, self-liquidated, or declared. These operations could avoid the payment of the municipal capital gain.